Charging Order? The myth
Comments
-
Thank you LR. So in this case "over reaching" will not apply as I am a single owner following my exs death??Land_Registry wrote: »A couple if things to note based solely on the details posted. As I mentioned the devil is in the detail and you've already implied the exact details may not have been shared
Applications to cancel restrictions will often be referred to one if our lawyers or a senior officer at the local office. Not quite as grand sounding as posted but still an indication as to how we have to treat such applications. As they are to cancel, and not withdraw, it's an application by someone adversely affected by the restriction so we have to be mindful of the risk in cancelling it.
Secondly you refer to overreaching and the key point re a sale by two ir more people. If you were joint owners and one passed away then you have a sale by a single owner presumably. The order of events since may also impact of course.
If you have completed then the buyer may have priority over their application to register a restriction anyway
And if you have spoken at length with us already then those are the details to focus on from a registration perspective rather than my more general postings which are made without the precise 'detail'
It is also my understanding that the application to reinstate the restriction was made before the buyer did the 'search of priority'
Giving the creditor the priority. So the buyers solicitor surely must of seen this??
Any thoughts?0 -
bonfire1966 wrote: »Thank you LR. So in this case "over reaching" will not apply as I am a single owner following my exs death??
It is also my understanding that the application to reinstate the restriction was made before the buyer did the 'search of priority'
Giving the creditor the priority. So the buyers solicitor surely must of seen this??
Any thoughts?
It would not be overreached in the automatic sense as you are now a sole registered owner so if the form K restriction were reinstated then it could hamper things on that score.
I suspect, and as alluded to in earlier replies, you applied for the restriction to be cancelled based on the evidence mentioned. In such cases we cannot simply assume that the debtor's death has ended the creditor's interest so we should have served notice on the creditor. If they did not reply then we would remove the restriction. I assume your discussions with us to date have confirmed what happened.
The solicitor's priority search result will indeed have revealed the pending application by the creditor to register a restriction.
Wider general thoughts would suggest that the application for a restriction will have been referred to a lawyer/senior officer as before. And then you receive notice of their application and given time to object.
That is where you are now at, despite the buyer completing, so it is your solicitor you must now rely on re any grounds for the objection. The law around such matters is very complex and we can't advise you on the law.
The only general advice I can add, and which eggbox has often referred to here, is that much is likely to depend on what has happened to your ex's share in the legal/beneficial ownership.“Official Company Representative
I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"0 -
Land_Registry wrote: »It would not be overreached in the automatic sense as you are now a sole registered owner so if the form K restriction were reinstated then it could hamper things on that score.
I suspect, and as alluded to in earlier replies, you applied for the restriction to be cancelled based on the evidence mentioned. In such cases we cannot simply assume that the debtor's death has ended the creditor's interest so we should have served notice on the creditor. If they did not reply then we would remove the restriction. I assume your discussions with us to date have confirmed what happened.
The solicitor's priority search result will indeed have revealed the pending application by the creditor to register a restriction.
Wider general thoughts would suggest that the application for a restriction will have been referred to a lawyer/senior officer as before. And then you receive notice of their application and given time to object.
That is where you are now at, despite the buyer completing, so it is your solicitor you must now rely on re any grounds for the objection. The law around such matters is very complex and we can't advise you on the law.
The only general advice I can add, and which eggbox has often referred to here, is that much is likely to depend on what has happened to your ex's share in the legal/beneficial ownership.
Spoke again to the land registry case worker named on the B141 he tells me that the creditor was never informed of my application to remove the restriction and it was removed purely on the information and evidence I provided.0 -
bonfire1966 wrote: »Spoke again to the land registry case worker named on the B141 he tells me that the creditor was never informed of my application to remove the restriction and it was removed purely on the information and evidence I provided.
The question, therefore, seems to be whether or not the LR are able to cancel a Restriction without having to contact the Restriction holder?
I suspect not but, at the very least, the creditor should at least expect to be informed why the Restriction is being cancelled?
But as LRR agrees, the real issue will be where the debtors beneficial interest now lies? So if you receive the proceeds then I can't see how a Restriction can be re-registered on a property that doesn't contain the benficial interest the CO was made against?
But on the issue of the "sole" owner sale not overreaching the Restriction, remember if the worst happens; you only have to add another (trustworthy) person to the deeds to reinstall joint owners which will allow overreaching to occur again when you sell the property.0 -
Sorry, Eggbox
I realise that. What I meant was, because I included the debt in my bankruptcy after the charge was in place, if we sell the house and the charge is removed, does that mean because the debt was included in my bankruptcy, they would not be able to persue me after the house sale because the debt was in my bankruptcy? I hope that's clearer.
Thanks, S69.0 -
You need to understand the Charge isn't removed by the sale of the property, only the Restriction which notifies that a CO exists is removed. The CO was made against the beneficial interest within the property so wherever that is after a sale the creditor can lay claim to it (hence the need to be sensible where you locate the released funds.)
As pre existing Charging Orders take priority over any subsequent bankruptcy dealings, they can't be included in the bankruptcy order.
You may have added it in with all other the debts but the fact the CO was made prior to the bankruptcy action; means it would not be included in the actual order. Therefore, the creditor can still pursue the debt if they so wish?0 -
Thank you for the clarification., so where would be best to put the equity, that would be legal?
My ex business partner sold his house & nothing was paid. The creditor said. that if he has now gone bankrupt then they could not pursue him for the debt. Is that correct?
Thanks, S69.0 -
If the funds are placed in a joint account they can't, currently, be accessed by a creditor under a third party debt order, But you must understand the joint holder is, legally, entitled to the funds every bit as much as you are? So it must be someone you can trust if you go down that route?
If (as I think you mean) your ex-partner had a Charging Order on his share of the debt prior to his bankruptcy; then the creditor can still pursue the debt. If the creditor thinks they can't that's their problem.
However, the biggest obstacle (and the reason the creditor usually gives up) is the difficulty in finding out where the actual money they can lay claim to actually is?
A Charging Order makes a legal judgement that a creditor can attach his debt to an asset the debtor owns or has an interest in (such as property) and is entitled to be repaid his debt from those proceeds when the asset is sold. If the debtor doesn't hand over the money, however, then its down to the creditor to put more effort (and expense) into pursuing the funds with no guarantee they will be succesful?0 -
The money's would be paid into a joint account with my wife, so I take it that would be ok?
.Like you said if they believe that they can't pursue him, it's their fault.
After the house sale, we would then rent for a minimum of 12 months before considering buying a new house & do it in a very discreet way.0 -
Sparkles69 wrote: »The money's would be paid into a joint account with my wife, so I take it that would be ok?
.Like you said if they believe that they can't pursue him, it's their fault.
After the house sale, we would then rent for a minimum of 12 months before considering buying a new house & do it in a very discreet way.
Yes to the joint account.
Buying any new property would expose you to potential come backs from the creditor if the amount is substantial? So you may want to consider whose name goes on the mortgage and titel deeds?0
Categories
- All Categories
- 343.2K Banking & Borrowing
- 250.1K Reduce Debt & Boost Income
- 449.7K Spending & Discounts
- 235.3K Work, Benefits & Business
- 608K Mortgages, Homes & Bills
- 173.1K Life & Family
- 247.9K Travel & Transport
- 1.5M Hobbies & Leisure
- 15.9K Discuss & Feedback
- 15.1K Coronavirus Support Boards